Conflicting Medical Opinions: Must Employee Return to Work?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

July 30, 2018

Under the Americans with Disabilities Act, an employer desiring to break ties with an employee because of risks related to his disability must often show that the employee is a direct threat to harm himself, others, or company property. That an employee poses a direct threat is an affirmative legal defense, meaning the employer bears the significant burden of establishing the existence of the threat. The recent case of Spencer-Martin v. Exxon Mobil Corp. (M.D. La. June 15, 2018) is an excellent example of how an employer may successfully use the direct threat defense to the Americans with Disabilities Act.

Spencer-Martin worked as a control room operator at one of the company's chemical plants. The safety risks associated with control room operator functions are significant, including potential explosions, exposure, and any other number of outcomes which could cause death and serious injury. From 2010-2015, Spencer-Martin had occasional seizures outside of work. She was prescribed anti-seizure medication. She disclosed the medication, but not the seizures, to Exxon, describing the medication as preventative. In April 2015, she had a seizure at work. Her own neurologist then restricted her from driving and safety-sensitive work for six months. In October 2015, her neurologist released her to return to work without restrictions. Because of the employer's concern that she could have another seizure at work, the employer asked its Occupational Health staff physician, Dr. Burgess, to do an individualized assessment of whether Spencer-Martin posed a risk of harm. This assessment included reviewing Spencer-Martin's medical records, touring the unit where she worked, consulting with other doctors, and interviewing the employee. The employee acknowledged that if she became incapacitated due to a seizure, other employees could be at risk. Exxon concluded that she was a direct threat and did not allow her to return to safety-sensitive work. The company looked for other work for Spencer-Martin but could not find any work for which she was qualified.

Spencer-Martin sued, contending that she did not pose a direct threat, given that her neurologist had released her and challenging Dr. Burgess's opinion because he was not a board-certified neurologist and because her seizures were and had been relatively well-controlled and infrequent. The court rejected Spencer-Martin's ADA claim. The court noted that it is a violation of the ADA for an employer to have a "zero risk" policy regarding seizures, but that the employer did a thorough, individualized assessment that considered the duration of the risk, the potential harm that could occur, the likelihood of the harm and whether any potential harm was imminent. According to the court, Spencer-Martin presented no evidence to show that she is not at risk for a seizure, even though she did not have a seizure for six months.

While on the subject of employee medical matters and safety at work, the case of Mitchell v. U.S. Postal Service involved an employee who suffered from depression and took an extensive leave of absence. He provided his employer with a doctor's note stating that he was able to return to work without restriction. However, the employer received a note from the employee's wife, stating that she thought the employee would suffer a mental breakdown if he returned to work. The wife's letter was accompanied by a letter from the employee himself, imploring his wife to write her letter. Accordingly, the employer placed the employee on leave and asked the employee to provide a note from his doctor addressing the concerns in his wife's letter. The employee refused and was terminated. The employee claimed it was due to disability discrimination, but on June 28, 2018, the Sixth Circuit Court of Appeals upheld the employer's decision.

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